J, R (on the application of) v The Secretary of State for the Home Department

A judicial review ordinarily concerns the lawfulness of the decision when made. Later evidence cannot be introduced to alter that historic inquiry without a clear direction to that effect.

The decision whether further submissions amount to a fresh asylum claim is entrusted to the Secretary of State. The court or tribunal reviews that decision on public-law grounds and cannot substitute its own assessment or compel the grant of an in-country right of appeal. Even where a refusal is unlawful because material medical evidence was inadequately addressed, mandatory relief is unavailable unless only one lawful outcome is possible.

A claim made academic by an undertaking to reconsider will normally be dismissed. It should continue only in wholly exceptional circumstances, such as where an important point of principle requires determination.

The applicant, a Sierra Leone national, sought judicial review of the Secretary of State’s decision of 27 June 2013 not to treat further submissions as a fresh asylum or human-rights claim. Her original asylum appeal had been dismissed by the First-tier Tribunal in November 2009, principally on credibility grounds.

The further submissions included medical, psychiatric and social-work evidence said to corroborate her account of rape, torture and post-traumatic stress disorder. After permission was granted, the Secretary of State offered to reconsider all earlier and further material under paragraph 353 of the Immigration Rules if the claim were withdrawn. The applicant declined, seeking determination and an in-country right of appeal.

The issues were whether the judicial review had become academic and whether the Tribunal could compel the Secretary of State to grant such a right of appeal.

1. The application was dismissed as academic. The Secretary of State’s offer to reconsider the further submissions and new evidence removed the practical dispute. Authorities on academic judicial review established that proceedings should continue only in wholly exceptional circumstances, such as an important point of principle requiring resolution. None arose here.

2. Judicial review concerns the legality of the historic decision. The President’s direction for service of further evidence did not authorise material absent from the decision-maker at the time of the impugned decision to be used to determine its lawfulness.

3. The question whether submissions constitute a fresh asylum claim is a judgment entrusted initially to the Secretary of State. Following Onibiyo v Secretary of State for the Home Department [1996] EWCA Civ 13 and WM (DRC) [2006] EWCA Civ 1495, it is reviewable on Wednesbury grounds, not an occasion for the Tribunal to substitute its own decision. The Tribunal therefore could not make a mandatory order requiring an in-country right of appeal.

4. In any event, the medical evidence did not establish that only one lawful outcome was possible. The June 2013 decision was unlawful on ordinary WM (DRC) grounds because it gave inadequate consideration to material evidence, including reports of cigarette-burn scars and the psychiatric assessment of malingering. A lawful reconsideration could nevertheless conclude that the earlier adverse credibility findings outweighed that evidence.

5. The respondent was ordered to pay the applicant’s reasonable costs up to 2 April 2015. The applicant was ordered to pay the respondent’s reasonable costs from 3 April 2015. Permission to appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): The judicial-review application against the Secretary of State’s decision of 27 June 2013 was dismissed as academic: [2015] UKUT 678 (IAC).
• First-tier Tribunal: In November 2009, the applicant’s appeal against refusal of her original asylum claim was dismissed on all grounds.